Defendant 1 and one other

Both parties

Park Jong-young (prosecutions) and Kim Jong-gle (public trial)

Law Firm Han, Attorneys Kim Jong-ho et al.

Daegu District Court Decision 2014Ra149 Decided July 2, 2014

The judgment of the court below is reversed.

Defendant 2 shall be punished by a fine of two million won.

If the above defendant does not pay a fine, he/she shall be confined in a workhouse for the period calculated by converting 100,000 won into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

Defendant 1 is not guilty.

1. Summary of grounds for appeal;

A. Defendants

(1) misunderstanding of facts

Defendant 2 cannot be deemed to have caused harm to the mental health and development of the victim by the same act as the facts charged in the instant case. Defendant 1 did not neglect to exercise due care and supervision in order to prevent Defendant 2 from committing child abuse. Therefore, the lower court found Defendant 1 guilty of all of the facts charged, which erred by misapprehending the facts, and thereby adversely affecting the conclusion of the judgment.

2) Unreasonable sentencing

The punishment sentenced by the court below against the defendants (the fine of KRW 2,00,000) is too unreasonable.

(b) Prosecutors;

The punishment sentenced by the court below against the defendants (the fine of KRW 2,00,000) is too unhued and unfair.

2. Ex officio determination

(a) Amendments to Bill of Indictment;

The prosecutor added "Article 40 of the Criminal Act" to the provisions of the law applied in the trial of the party, and applied for amendments to the indictment with the provisions of Article 1-A (b) as stated in the facts charged (A) as stated in Article 1-A (1). Since the subject of the judgment was changed by the court's permission, the judgment of the court below no longer

B. Summary of the facts charged

Defendant 2 is an infant care teacher of the ○○ Child care center located in the Gu and Si, and Defendant 1 is the head of the above ○○ Child care center, and no person shall commit emotional abusive acts detrimental to the mental health and development of a child.

1) Defendant 2

A) On September 25, 2013, the Defendant: (a) around 11:12 on September 25, 2013, at the class of the ○○○ Child Care Center, on the ground that the victim Nonindicted 1 (3) who was sitting on the floor while running a school was trying to come close to the Defendant because he was unable to understand the curriculum well; (b) on the same day, at around 12:39, the victim was pushed down on the right side; (c) one time on the left side of the victim, and on September 26, 2013, the following day, at around 09:28, the victim’s mother Nonindicted 2 was written, and at the same time, the victim’s emotionally abused the victim’s body by checking the head of the victim’s head on his left hand; and (d) making the victim sit down on the victim’s body and the victim’s emotionally abused the victim’s body on the ground that the victim did not drink.

나) 피고인은 2013. 9. 26. 09:33경 위 △△반 교실에서 피해자의 모가 피고인의 보육에 관하여 수회 지적하는 등 까다롭게 군다는 이유로 화가 나, 수업 준비시간 및 수업시간 동안 다른 원생들은 피고인 근처에 모여 앉게 하였음에도 피해자만 다른 원생들로부터 멀리 떨어진 채 피고인의 뒷편에 따로 떨어져 앉게 하여 다른 원생들과 어울리지 못하도록 하고, 같은 날 12:50경 위 ○○어린이집 △△반 교실에서 피해자가 밥을 천천히 먹는다는 이유로 식판을 빼앗아 복도에 놓아두고 피해자를 복도로 내보낸 다음 수저통을 복도로 던져 피해자로 하여금 혼자 복도에서 쭈그린 상태로 밥을 먹게 하고, 같은 날 14:04경 △△반 교실에서 피해자가 낮잠을 자지 않고 책을 읽으려고 한다는 이유로 화가 나 책을 빼앗아 보지 못하게 함으로써 각각 피해자의 정신건강 및 발달에 해를 끼치는 정서적 학대행위를 하였다.

2) Defendant 1

Defendant 2, an employee at the same time and place as described in the above Paragraph 1, committed an abuse as described in the above Paragraph 1 in relation to the Defendant’s duties.

C. Judgment on Defendant 2

However, despite such reasons for ex officio destruction, the above defendant's argument about mistake of facts is still subject to the judgment of this court.

Article 3 Subparag. 7 of the Child Welfare Act provides, “The term “the term “child abuse” means doing physical, mental, or sexual violence, or cruel acts that may harm a child’s health or welfare or may impede normal development of a child, and a child’s protector abandons or abandons the child.” The term “the term “child abuse” under the Criminal Act refers to the protected legal interest of the child’s life and body, but the protected interest is the child’s health and welfare. In the case of the crime of abuse under the Criminal Act, the term “child Welfare Act” refers to a person under 18 years of age (i.e., the child), while the person under 18 years of age is subject to protection or supervision in the case of the crime of abuse under the Criminal Act. Considering these differences, the concept of abuse under the Child Welfare Act does not narrow the concept of abuse under the Child Welfare Act on the ground that the statutory punishment for the crime of abuse under Article 17 Subparag. 3 of the Child Welfare Act is higher than the statutory punishment for the crime of abuse under the Criminal Act.

Article 17 of the Child Welfare Act provides for “the act of abuse that causes damage to a child’s body” in subparagraph 3 and subparagraph 5 separately provides for “the act of emotional abuse that causes damage to the child’s mental health and development.” From among the act of causing damage to the child’s body, an act that does not cause harm to the mental health and development of the child cannot be presented. In light of the language and text of each of the above provisions, etc., the act under subparagraph 5 refers to the act of emotional abuse that does not accompany the exercise of tangible power but does not cause damage to the child’s body (see Supreme Court Decision 2011Do6015, Oct. 13, 201).

According to the evidence duly adopted and examined by the court below and the court below, the following facts and circumstances are acknowledged.

① On September 25, 2013, around 11:12, 2013, the Defendant, while running a school, sealed the victim of the defect to the right to sit close to the Defendant, and around 12:39 on the same day, the Defendant left the victim’s left arms boomed in the classroom course.

② On September 26, 2013, at around 09:28, the Defendant was aware of the victim’s mother that “I am flick because I am blick because I am blick because I am blick? I am blick and I am home at 5 times. I am the same blick that I am flick. I am back until I am flick. I am blick. I am blick. I am blick, I am the victim’s head and flick with his left hand, while I am blick. I am blick.”

(3) At around 09:33 on the same day, the victims who are sitting at the entrance of the △△△ Group are tight down by fasting them, and have them sit again, and they are removed from the opening time to prevent them from sounding any other children.

④ At around 12:50 on the same day, the Defendant: (a) laid the victim’s food board onto the corridor on the ground that the victim was boomed to boomed; and (b) laid the water reservoir toward the corridor.

⑤ At around 14:04 on the same day, the Defendant, who was not locked by the victim, was able to bring him to a less locked time, and the Defendant took the book (in relation to the above act, the Defendant had a habiter who read the book at all times without being locked by the victim, but on the day of the commission of the crime, stated that the Defendant committed the above act in a state where the victim’s mother was satisfing). After that, the Defendant, who was liable to the victim, posted the book on the book to the victim.

It is also recognized that the facts are recognized by the Defendant that the Defendant expressed the personal sentiment of the Defendant on the above act in the victim, and that the victim was receiving medical treatment in the △△ Child Psychological Department.

When considering the above facts and circumstances in light of the above legal principles, it is reasonable to view that a series of acts by the defendant constitute emotional abuse that harms the mental health and development of the victim in light of the mental impulses that the victim who is merely three years of age has received. Therefore, the above defendant's assertion that it does not constitute such act is without merit.

D. As to Defendant 1

In light of the principle of self-responsibility, it is reasonable to view that the above two punishment provisions apply only to the case where a corporation neglects its duty of due care or management and supervision in relation to the business of violation. In a specific case, whether a corporation neglects its duty of due care or management and supervision shall be determined by comprehensively taking into account all the circumstances related to the violation in question, namely, the legislative purport of the relevant law, the degree of infringement of legal interests anticipated to violate the penal provision, the purport of preparing both punishment provisions concerning the violation, as well as the specific form of the violation and the degree of damage or result actually caused thereby, the business size of the corporation, the possibility of supervision or supervision of the offender, and the measures actually taken by the corporation to prevent the violation (see Supreme Court Decision 2009Do5824, Feb. 25, 2010).

Based on the above legal principles, according to the evidence duly adopted and examined by Defendant 1, Defendant 1 fulfilled his duty of care in relation to Defendant 2’s duties, the court below and the court of the trial, and the court of the trial, the above Defendant installed CCTV in the child care center of this case so that it may not be neglected to conduct child education by indirectly monitoring and psychological burden on the teachers belonging to the child care center of this case, through Nonindicted 3, the Defendant provided the individual education, safety accident and child abuse prevention of infant care teachers, school teachers related to the education program on a regular basis, the Central Child Care Information Center provided the teachers under its jurisdiction with child abuse prevention education at the Central Child Care Information Center, three days of counseling, and confirmed the exchange with the parents of the child care center of this case. Considering the above facts, the Defendant did not neglect to observe and supervise classes every day between 9:00 p.m. and 3:0 p.m. between 3:00 p.m. and 4:00 p.m., it is difficult to readily conclude that the above Defendant did not neglect to do so solely on the CCTV.

Therefore, although this part of the facts charged constitutes a case where there is no proof of crime and thus should be pronounced not guilty under the latter part of Article 364(2) of the Criminal Procedure Act, the judgment below erred by misapprehending the facts or by misapprehending the legal principles, which affected

3. Conclusion

Therefore, the judgment of the court below is reversed ex officio pursuant to Article 364(2) of the Criminal Procedure Act without examining the allegation of unfair sentencing by Defendant 2 and the prosecutor. It is so decided as follows.

피고인 2는 2013. 9. 25. 11:12경 위 ○○어린이집 △△반 교실에서, 수업을 하던 중 바닥에 앉아있던 피해자 공소외 1(3세)이 수업 내용을 잘 이해하지 못하여 피고인에게 가까이 다가가 앉으려고 했다는 이유로 피해자를 우측 발로 밀치고, 같은 날 12:39경 피해자가 밥을 잘 먹지 않고 딴짓을 하였다는 이유로 피해자의 좌측 팔을 오른 손으로 1회 때리고, 다음 날인 2013. 9. 26. 09:28경 피해자의 모 공소외 2가 적어 보낸 원아수첩에 “아이가 이마를 다쳤다”는 내용이 기재된 것을 보고 화가 나 왼손으로 피해자의 이마 부위 상처를 확인한 후 머리를 뒤로 세게 밀치고, 같은 날 09:33경 피해자가 위 △△반 교실 출입문 쪽에 앉아 있었다는 이유로 우측 발로 피해자를 밀치고, 같은 일시경 위 △△반 교실에서 피해자의 모가 피고인의 보육에 관하여 수회 지적하는 등 까다롭게 군다는 이유로 화가 나, 수업 준비시간 및 수업시간 동안 다른 원생들은 피고인 근처에 모여 앉게 하였음에도 피해자만 다른 원생들로부터 멀리 떨어진 채 피고인의 뒷편에 따로 떨어져 앉게 하여 다른 원생들과 어울리지 못하도록 하고, 같은 날 12:50경 위 ○○어린이집 △△반 교실에서 피해자가 밥을 천천히 먹는다는 이유로 식판을 빼앗아 복도에 놓아두고 피해자를 복도로 내보낸 다음 수저통을 복도로 던져 피해자로 하여금 혼자 복도에서 쭈그린 상태로 밥을 먹게 하고, 같은 날 14:04경 △△반 교실에서 피해자가 낮잠을 자지 않고 책을 읽으려고 한다는 이유로 화가 나 책을 빼앗아 보지 못하게 함으로써 포괄하여 정신건강 및 발달에 해를 끼치는 정서적 학대행위를 하였다.

1. Defendants’ partial statement

1. Some statements among the suspect interrogation protocol against the Defendants are written by the prosecution

1. Legal statement of Nonindicted Party 2 as a witness of the political party;

1. The police statement of Nonindicted Party 2

1. A report on investigation (a CCTV investigation in an generating place);

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 71(1)2 of the former Child Welfare Act (Amended by Act No. 12361, Jan. 28, 2014); Article 17 Subparag. 5 (Generally, Selection of Fines)

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

The crime of this case is deemed to have committed emotional abuse against a child whose age had been under his protection and who lacks the defense capability, and has a bad quality of the crime, and not only affected the victim's mental health and emotional development, but also inflicted mental pain on the parent of the victim who believed the defendant to leave the victim to the child care center of this case, while the defendant 2 is aware that he had committed the mental pain on the parent of the victim who was in trust of the defendant, on the other hand, he has the intention to commit his act, and he is the first offender, the defendant's age, environment, occupation, family relationship, circumstances leading to the crime of this case, etc., and all other circumstances constituting the conditions for sentencing as shown in the records, including the following circumstances, shall be determined as the sentence as ordered.

1. Defendant 2

A. Summary of the facts charged

The summary of the facts charged in this case is that the act as described in Article 2-2-2(b)(1)(A) was committed with abuse that damages the victim's body.

B. Determination

This part of the facts charged is reasonable to deem that an act does not cause physical harm to the victim, even though the victim exercised physical force. The evidence submitted by the prosecutor alone is insufficient to readily conclude that there was a physical abuse against the victim, and there is no other evidence to prove otherwise.

C. Conclusion

Therefore, this part of the facts charged constitutes a case where there is no proof of a crime, and thus should be acquitted under the latter part of Article 325 of the Criminal Procedure Act. However, as seen earlier in the facts charged, inasmuch as the conviction of emotional abuse in an ordinary concurrent relationship is recognized as a crime of violating the Child Welfare Act, the judgment of not guilty is not rendered separately

2. Defendant 1

The summary of the facts charged of this case is as shown in Article 2-2(b)(2) of the Criminal Procedure Act, and as examined in Article 2-2(d) of the same Act, since this part of the facts charged falls under a case where there is no proof of facts charged, it is sentenced not to the defendant 1 under the latter part

Judges Kim Jong-sung (Presiding Judge)